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Guest editorial: Just how strong is public sentiment?

Author: Darren Olivier (Adams & Adams, Johannesburg)

2015 started outrageously. The attack in Paris in early January on the offices of Charlie Hedbo, which left 12 dead, enraged the world. The feelings of millions were expressed on Twitter through #JeSuisCharlie, which has since become not only a slogan of solidarity but an expression that promotes freedom, in this case freedom of speech and of the press. At one point, the hashtag was apparently being used 6,500 times per minute in the Twittersphere. It has also become an expression that has found its way, through application, onto numerous trade mark registers throughout the world, creating its own outrage. This outrage is illustrated by Jeremy Phillips's post about the phenomenon on Linkedin's MARQUES group which is still attracting commentary. Profiteering from the massacre seems as sickening as the massacre itself.

In Africa, a different but similar outrage was occurring at the same time. In early December the autopsy of the Apartheid activist and hero for freedom Steve Biko was put on auction by siblings (the Steeles) who had come upon a copy of it when their mother had died. Their mother was the private secretary of the pathologist who helped perform the autopsy and was employed by the Bikos in the '70s to provide a trusted view. Steve Biko had been violently murdered by South African security police while in detention. The autopsy and subsequent inquest was critical to exposing the State, which had claimed he died following a hunger strike. Biko has since become a martyr for freedom and his Foundation is active in using IP to protect his legacy. For example, they successfully secured ownership over a dedicated BIKO exhibition, in part using copyright laws, ironically against the Apartheid Museum, a few years ago.

The auction of the autopsy was temporarily stopped by court order in December and the public backlash against the Steeles was just as ferocious as #JeSuisCharlie, relatively speaking. Well known local cartoonist and satirist Zapiro expressed the public's view by depicting the individuals as vultures clinging to the autopsy report above Steve Biko's grave with a caption that played on the names of the individuals – Family Steal. He might have done the same for those who seek to register #JeSuisCharlie as trade marks for their own gain. Indeed, had he worked for Charlie Hebdo, his life might have been in danger.

There is every indication though that, despite the moral outcry from the majority, the antagonists will refuse to donate, surrender, relinquish or withdraw their efforts and therefore will continue to be depicted as vultures in the minds of the public. I have nothing against vultures, by the way. They are opportunistic and necessary and I even stop my car in the Kruger Park to marvel at them. But they are also considered ugly birds whose sole function is to scavenge, persistently. We will therefore hear more about how registries, courts and attorneys argue and react over #JeSuisCharlie trade marks and the Biko autopsy report (where papers have now been filed in the High Court for its return because the Steeles have remained persistent).

Another example of this behaviour in the face of moral outrage is the fate of the REDSKINS trade mark in the United States, which has been under attack since at least 1992 on the ground that it is scandalous and disparaging to Native Americans. Two decades later, the impasse has still not been resolved. American blogger Marty Schwimmer was sufficiently provoked to deliver a rallying cry at the Meet The Bloggers event at the INTA meeting in Hong Kong in 2014 and his post in late November reveals that the matter is still live in the courts.

This draws me to conclude that public sentiment on its own is not sufficient to cause a great deal of change in these types of cases. It is perhaps only when the object of the public's outrage is shunned to the extent that commercially it becomes detrimental to the owner or possessor that change will occur.

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The principal contents of this weblog are drawn from the Current Intelligence features which are published monthly in JIPLP.

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JIPLP is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

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